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Nesbit v. McCarthy

filed*fn*: January 4, 1993.

FRED RAY NESBIT, PETITIONER-APPELLANT,
v.
DANIEL MCCARTHY, DIRECTOR, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-88-01116-WBS. William B. Shubb, District Judge, Presiding

Before: Goodwin, O'scannlain, and Rymer, Circuit Judges.

MEMORANDUM

Fred Ray Nesbit appeals the district court's denial of his petition for a writ of habeas corpus. Nesbit was convicted of one count of second degree murder in California state court. He argues that the trial court violated his due process rights by admitting "gunshot signature" evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253, and we affirm.

I

Nesbit and his wife, Rebecca Nesbit ("Rebecca"), separated in January 1985. A dispute over the ownership of two horses subsequently developed between Nesbit and Rebecca. On March 27, 1985, Rebecca and her lover, Donald Hallock, moved the horses from Nesbit's property. That evening, Nesbit and his girlfriend, Connie Meider, went to Rebecca's apartment. Nesbit had consumed approximately six beers and was armed with a .38 caliber handgun. When Meider knocked on the door, Rebecca and Hallock, who was also in the apartment and was armed with a .45 caliber handgun, did not respond.

When Rebecca saw Nesbit in the driveway with a handgun, she called 911. Nesbit returned to the apartment and, finding that the lights had been turned off, forced open the door. The ensuing gun battle between Nesbit and Hallock was recorded on the 911 tape. Physical evidence shows that Nesbit's .38 was fired twice and Hallock's .45 was fired five times. Both men were injured and Hallock died the next day from his injuries.

The direct evidence of who shot first consisted of the testimony of Rebecca Nesbit and a hearsay statement by Hallock. Rebecca testified that Nesbit fired about four times before Hallock fired back. The physical evidence that Nesbit fired only twice contradicts this testimony. Hallock stated to an officer that he "shot Fred back"; this hearsay statement was admitted as a dying declaration.

The controversy in this appeal is over the testimony of Los Angeles Deputy Sheriff Craig Melvin, who presented "gunshot signature" acoustical analysis which suggested that the first and fifth shots on the 911 tape were acoustically similar, and that the other shots were acoustically dissimilar from the first and fifth shots. Melvin concluded from this evidence that the first and fifth shots "most likely" were fired by Nesbit's .38. Nesbit offered the testimony of acoustics engineer Fausto Poza to impeach Melvin's testimony.

Nesbit was convicted of one count of second degree murder. The California Court of Appeal upheld Nesbit's conviction, finding proper the trial Judge's ruling that Melvin's testimony was admissible, see People v. Nesbit, No. 3 Crim. C001156 (Aug. 20, 1987), and the California Supreme Court dismissed Nesbit's petition for review. Nesbit filed this action for a writ of habeas corpus on August 30, 1988. The magistrate Judge assigned to the case held an evidentiary hearing on the reliability of the gunshot signature evidence. The magistrate Judge recommended that the writ of habeas corpus be granted, but the district court declined to follow the recommendation and denied Nesbit's petition. This appeal followed.

II

The State of California argues that Nesbit failed to exhaust state remedies. Title 28 U.S.C. § 2254(b) provides that "a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State . . . ." See also Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). A petitioner is not required to "cite[] book and verse on the federal constitution," see Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971) (citation and internal quotes omitted), but must simply present the substance of his claim to the state courts, id. See also Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986) ("the exhaustion requirement is satisfied once a claim has been fairly presented to the highest state court").

Nesbit argued to all state courts that Melvin's testimony should have been excluded under the standard of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Ct. App. 1923), and People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976). He argued in his petition for review to the California Supreme Court that the admission of the evidence violated his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. These arguments sufficiently presented Nesbit's constitutional claim to the California courts and satisfy the requirements of 28 U.S.C. § 2254(b).

III

Nesbit contends that admission of the gunshot signature evidence violated his due process rights. In order to establish a due process violation based on erroneous admission of evidence, Nesbit "must show that that error rendered the trial so 'arbitrary and fundamentally unfair' that it violated federal due process." Pennywell v. Rushen, 705 F.2d 355, 357 (9th Cir. 1983) (quoting Powell v. Spalding, 679 F.2d 163, 166 (9th Cir. 1982)). The Supreme Court has stated that a writ of habeas corpus will only be granted for erroneous admission of evidence where the "testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings." Barefoot v. Estelle, 463 U.S. 880, 899, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983) (psychiatric ...


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